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Prosecutorial Soundbites: When Do They Cross the Line?

Even good prosecutors can cross the line with media soundbites. Especially in high-profile cases, prosecutors must assess if their pretrial remarks about a case meet their ethical obligations. In Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), the United States Supreme Court held that while lawyers have the First Amendment right to make comments to the press, they do not have the right to make comments that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Although ethical codes have adopted this broad standard, many have failed to identify more specifically when a prosecutor’s remarks pose a substantial likelihood of having such a prejudicial effect. Using 28 C.F.R. § 50.2 as a guide, this article seeks to identify those “hot-button” areas. It identifies topics that are most likely to pose the greatest ethical problems for prosecutors. These topics relate directly to practices and evidentiary problems that have long led to wrongful convictions. In particular, this article focuses on why prosecutors should generally refrain from discussing a defendant’s character and race, confessions and admissions, scientific tests and DNA testing, and eyewitness identifications and witness credibility. It also discusses why prosecutors should depersonalize their involvement in cases and refrain from offering personal opinions regarding a defendant or the case. Finally, the article suggests that prosecutors should look to other professions’ ethical codes, including those of journalists, to set aspirational standards that will help guide prosecutors’ extrajudicial remarks.